Criminal Law, Civil Law and Defence (Miscellaneous Provisions) Bill 2026: Report and Final Stages Seanad Éireann — 2026-07-02 ============================================================ Alice-Mary Higgins (IND), National University of Ireland I mentioned it on Committee Stage and I will mention it again because I think it is a fundamental issue here. The approach that the Government is taking here and that the Minister has chosen to take, despite the testimony he has heard from survivors, is not in the interests of justice in itself. When we talk about "in the interests of justice" - the phrase can and, I fear, will be abused as it is used in the Minister's legislative proposals - the crisis of justice we face and the Minister faces and presides over is a crisis of confidence in the justice system for a very good reason because of the experience of people. There is a crisis of confidence not just among those who have experienced violent or sexual assault or abuse, but also across the entire country among the public. We have heard the statistics. I referred to the 71% of victims who will not and do not report to the Garda. These are huge numbers. The vast majority - almost two thirds - will not and do not report violence they experience to the Garda in this area because of the system that is in place and because of the perception - this goes to the wider piece - of 76% of the public. It is not just survivors who feel that, as 76% or over three quarters of the general population believe that victims of sexual violence are going to get a hard time in a trial. There is a problem in that the wide, general perception is that victims of sexual violence get a hard time in our trial system. A big part of that is the fact that the victims feel that they are going to be put on trial and dragged through the coals. That is the common understanding of the public and that feeds down to the fact that so few people who experience these assaults come forward. The Minister has a real problem when there is a very large area of criminal activity where the public does not have confidence in how the legal system will treat it and where victims do not have confidence. Of course, because these are predominantly women, this is a gender issue as well because you are looking at a huge part of the population that feels that if violence is done to them in a sexual way, they are not confident in how they will be treated. It can only add to that perception and experience when you see again the fact that, despite what the Minister has been told - the evidence and the testimonials - we are going to come out of this supposed process of potential reform with this situation regarding a person's most intimate and personal testimony. It is not even testimony but personal discussion. It is effectively hearsay. These are the notes, the discussions and the process of thinking things through that somebody does with a counsellor. Not only that; they are not even transcripts of that. They are the counsellors' interpretation of what they say. They are effectively hearsay on a very intimate and private conversation. The Minister gave the example of somebody wanting to demonstrate that they had raised an issue previously, but that is where the issue of it being solely with the consent of the person comes in. On the idea that that piece of conversation may be used, I refer to the process itself. We have this filter. At a minimum you know that your counselling notes will be given to a stranger to discuss and examine whether they, on balance, think it is a good idea that they should be used. The very fact of this filtering process already breaches that sense of the privacy and intimacy and the important dynamic of the conversations that are had. There is also the problem of the damage that is done to people when they are made afraid to go to the Garda and the damage that is done to people when they are made afraid to seek counselling. There is also the damage that is done when ordinary people who have experienced horrendous things come forward to the political system to share their testimony and genuinely seek that it be reflected in legislation but they are seen to be not listened to. One of the things that comes up in that whole world around the idea of the propensity of sexual violence and violence against women is this thing of "believe women". What has been asked of the Minister is to believe women who have experienced sexual violence, who have told him the laws he is proposing will have a negative impact on them, and who made that clear when they talked to the committee. That was why it was reflected in what the committee recommended. I refer to the compromise language around the presumptions of non-disclosure. I am supporting the amendments that will look for a full prohibition but the compromise language was not even listened to or engaged with. We have a dilution of a compromise put forward by the Government. The chilling effect on the seeking of healing, justice and engagement with processes of legislative change, all of that, is a really heavy piece to come out of this process with. The Minister said he is confident that this is going to solve it but people are telling him that it will not. Where is the review clause? There is the statute, but what happens with the statistics? Is the Minister expecting that suddenly we are going to have 50% of people coming forward? There is that crisis, which is the Minister's responsibility to address, of the fact that the majority of people who experience sexual violence are not coming forward. That is going to be part of the test. It is not like prosecutions that we get or do not get. It will be the fact of people who choose to engage or not engage with the system. If the only thing the Minister can offer them is that we will have a new filtering system before their counselling records are used and if that is all he is offering, I do not see the 71% of people who do not report going down to 50% or 40% or 10% or the fact that 100% or 80% or 90% of all those who wish to and should feel confident in going into our legal system and seeking justice. There is not any other area of offence where there are so few people who will report or engage. That is the challenge that was put. That is the challenge that is there in the interest of justice and for justice to be seen to be, understood to be and felt to be done in the State. What the Minister has offered does not deliver for that. Our amendments are in respect of the prohibition, including, in amendment No. 27, a provision that "A counselling record shall not be disclosed in any criminal proceedings unless the complainant has consented to the disclosure". When we look at the issue of interest of justice, it is unclear. The Minister said that the interest of justice could be that this adds evidence for the prosecution. Let us talk about the person who has complained. If the Minister was accepting the amendments whereby it was done only where there is the consent of the complainant - and only in those circumstances and no other circumstances - then they would already have a recourse in relation to that matter. The interest of justice is very wide. It is not confined to being used solely by the complainant or the person on whom an assault is being prosecuted. It can be used in lots of contexts. Justice is exactly those things. Justice could be around creating an impression of consent and creating dilution. For example, there are incidents of persons who were abused as children have had the fact that they were abused as children used against them in the context of having experienced other assault. It was a case of people having been traumatised in the past and this was just them reiterating and replaying those traumas they had in the past. It is not confined to what did or did not happen at a particular time and particular date and some useful facts, which would never be fact, because they are hearsay that come through in counselling notes. It is always and often used in terms of creating a dilution as to credibility creating questions of reasonable doubt and creating an ambiguity on the issue of consent or in its worse instances, in attempting to abuse the character of a person who is seeking justice. Those are the kinds of ways these things get used. Under the Minister's legislation, I am not confident that they will not be used in those ways in the future because the interest of justice is a very wide provision. That is why that as well as the amendment in relation to the prohibition, we also have an explicit amendment removing some of that language around "in the interest of justice" and confining these uses to the situations of an unfair trial, which of course, could be an unfair in either context. --- Source: Houses of the Oireachtas. Licensed under CC BY 4.0 (https://creativecommons.org/licenses/by/4.0/). The Official Report is revised after first publication; the fetch timestamp below identifies the version quoted. Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/seanad/2026-07-02/debate/main Retrieved: 2026-08-14T04:55:09+00:00 Sitting date: 2026-07-02